www.elsblog.org - Bringing Data and Methods to Our Legal Madness

30 April 2006

I have really enjoyed my time here at the ELS blog. For my final post, I want to give a plug for what
I hope will soon be a mainstream law school course and an important area of research
for law professors: “The economics and sociology of the legal profession.”

In 2004, I taught a course at Indiana entitled “The Law
Firm as a Business Organization” (website and syllabus here.) In preparing the course, I discovered that the
socio-legal literature—much of it empirical—is an inexhaustible supply of high
quality materials for showing students (a) the economic and social structure of
the legal profession, and (b) how it has changed, and will continue to change,
over time. In short, existing social science can be used to
help students make more careful, informed career decisions. Similarly, numerous alumni, several of whom
visited my class, have expressed a strong interest in empirical work on lawyers. (Amidst the rapid pace of change, that should
not be surprising.) With the aid of ELS, here is an opportunity for the academy
to re-engage with the profession.

To further this agenda, I have organized an email list
of approximately 100 scholars from a wide array of disciplines who have written
in a field I dub “The Economics and Sociology of the Legal Profession.” This year, the list produced eight
panels for the 2006 Law & Society Annual Meeting in Baltimore (July 6-9). I hope many ELS Blog readers will be
interested in attending. Please contact
me if you want to be added to the email list. Eventually, it may turn into a Law & Society Collaborative Research
Network.

In 1982, Jack
Heinz and Edward
Laumann published Chicago
Lawyers: The Social Structure of the Bar. Drawing upon detailed interviews of
approximately 800 practicing attorneys, this book was a comprehensive analysis of the social structure of the Chicago bar. Its most famous finding was the “two
hemisphere” thesis, which concluded that there were two distinct sectors
defined by a lawyer’s clients: one serving organizational clients (primarily
corporations) and the other providing personal legal services to individuals
and small business. The two hemispheres
strongly tracked underlying divisions of race, ethnicity, law school pedigree,
professional and social networks, and income. Further, they seldom overlapped.

Heinz et al.’s two-hemisphere theory is a theme that keeps
cropping up in my economy geography of law firms research. Before getting to that, a bit more background is needed. Twenty years after Chicago Lawyers, Heinz and Laumann (with Robert Nelson and
future ELS guest blogger Rebecca
Sandefur) replicated their work using a new cross-sectional sample.
The results were published last year in
Urban
Lawyers: The New Social Structure of the Bar (2005). Heinz et al. found that
the division between corporate and personal services still existed, but the
“hemisphere” appellation—as in “half”—no longer applied. Approximately two-thirds of Chicago lawyers served primarily corporate
clients.

The change (between 1975 and 1995) was not the result of the
personal services sphere shrinking—indeed, as the total number of personal
services lawyers kept pace with the population growth of Chicago metro
area. Rather, the large shift in favor
of corporate lawyers appeared to be the result of a massive surge in the demand
by corporate clients. In addition, between
the first and second study, the corporate lawyers prospered economically while
the average income (in real dollars) of personal service lawyers actually
declined.

Thanks to Heinz et al., we have a fairly complete overview of
the changes in Chicago.
But to what extent are these findings representative
of other part of the U.S.?
The graph below provides some preliminary
evidence.

29 April 2006

Relying on data gathered from surveys and interviews of top political officials in the U.S. EPA, Lisa Schultz Bressman and Mike Vandenbergh (both at Vanderbilt) have written Inside the Administrative State: A Critical Look at the Practice of Presidential Control. I saw this paper presentation at AALS in D.C. and it is well worth the read for those interested in presidential influence and accountability in agency decision-making. The Abstract:

From the inception of the administrative
state, scholars have proposed various models of agency decision-making
to render such decision-making accountable and effective, only to see
those models falter when confronted by actual practice. Until now, the
presidential control model has been largely impervious to this pattern.
That model, which brings agency decision-making under the direction of
the President, has strengthened over time, winning broad scholarly
endorsement and bipartisan political support. But it, like prior
models, relies on abstractions - for example, that the President
represents public preferences and resists parochial pressures - that do
not hold up as a factual matter. Although recent empirical analyses
purport to validate the model, they fall short because they examine how
the White House exercises control without considering how agencies
experience control. This Article is the first to study the practice of
presidential control from inside the administrative state. We
interviewed the top political officials at the Environmental Protection
Agency from the George H. W. Bush and Clinton Administrations during
1989-2001. Our data, which do not vary substantially between
respondents of different presidential administrations, suggest that
White House involvement is more complex and less positive than previous
accounts acknowledge. But we do not conclude that the presidential
control model lacks merit. Indeed, our respondents recognize that the
President has a role to play in controlling agency decision-making. We
therefore conclude that the presidential control model requires
reworking to remain valid in practice as well as in theory. We identify
next steps in that direction.

28 April 2006

[The author of the following post is not
me but former guest blogger Steve Wasby. He offered to discuss an unusual
experience involving the publication of empirical work in a student-edited law
review. I am posting it on his behalf. – Bill]

What
follows is a cautionary tale, with potentially profound implications for those
who conduct empirical legal research -- whether of a highly statistical sort or
using less-high-powered statistics.

Perhaps
many of us who have published in law reviews, or who have attempted to do so,
are familiar with the vagaries of the process. In particular, some of us -- myself
included -- have encountered difficulties when we have used sources (such as
interviews or unpublished documents) with which the law review editors, and
particularly their cite-checking minions (whom I now refer to as “cite-checking
munchkins”), are not familiar. Sometimes the process goes well, particularly if
an articles editor or the editor-in-chief had some social science training, but
more often it is a PITA. Somehow, while we “cuss” to each other about it, we
live through it.

What
I am about to report may be a “one-of-a-kind”
instance, and I am not able to determine the source of the “idea” I report.
However, given the possibility that it will arise elsewhere, I thought the
readers of ELS Blog would find the
story interesting. If it is sui generis or
a “sport,” so much the better. If we have managed to defeat this incursion, so
much the better still.

NOTE:
The name of the law review in question is not used in what follows, nor are the
names of the other players. This is done because the point is the story, not a
tar-and-feather job on any individuals. Some redactions therefore appear in
quoted material.

In the short life of the ELS Blog, it appears that I am the
first JD-only guest blogger. With the
proliferation of JD/PhDs, some legal academics are probably intimidated by the
social science credentials of many ELS scholars. When I first started doing empirical work, I
was modestly embarrassed by my lack of formal training. Yet, I was in my mid-30s with a wife and
child. My one-year judicial clerkship
was already a financial hardship on my family; graduate school was simply out
of the question.

Therefore, if your life circumstances preclude graduate school
in economics, sociology, political science, etc., here are some tips, based on my own experience, for doing
ELS on the cheap:

1. Find and read social science that is relevant
to your legal research

This sounds elementary, but most legal academics don’t do it. During my 3L year at University of Chicago,
I took “Law and Social Science” with Gerry Rosenberg and Lisa Bernstein. After reviewing a draft paper that I hoped to
publish after graduation, Gerry Rosenberg banished me to the UC main library:
“There is a whole social science literature on this topic.” Gerry was right.

After my article was published (here), several
legal academics praised me for the social science component. In fact, it was nothing more than plying some
solid library skills in the UC main library. To this day, I remain convinced that it is possible to build a respectable
career in legal academia just by running a simple arbitrage between legal
topics and relevant social science literature. (Proviso, be thorough or don’t do it.) Of course, it is possible to do
more than translate between disciplines.

At an ABF function earlier this year, Stewart Macaulay, an
early empiricist and one of the founders of the Law & Society movement,
offered some good advice to J.D.’s interested in empirical work: “You can learn a lot about social science methodology
by studying the methods of other studies related to your topic.” Simple and
powerful advice.

2. Apply for a grant

Empirical research is time-consuming and
expensive. Fortunately, several
foundations exist to mitigate this burden. Therefore, if have an empirical project, apply for research support through a grant.

27 April 2006

For an interesting web-based interactive source for various state-level data, see StateMaster.com. A self-described "unique statistical database which allows you to research and compare a multitude of different
data on US states. We have compiled information from various primary sources such as the US Census Bureau, the FBI, and the
National Center for Educational Statistics."

At the risk of unduly dashing anyone's hopes, however, I want to emphasize that the site only provides quick-and-dirty cross-sectional aggregate summary data, by state, and not (regrettably) direct access to actual raw data. All of the few trial runs I just performed, however, do include helpful footnotes identifying sites to the critical primary sources of raw data (some hot-linked). Thus, even if you have no use for descriptive summary data, the site might lead quickly you to more helpful primary data sources.

26 April 2006

The 2006 Fortune 500 was released a couple of weeks ago, and Fred Tung at
Conglomerate has some interesting comments
on the geography of the new list. For
the last several months, I have been collecting and analyzing data for a
project on the economic geography of the Am Law 200. Since Fortune 500 (or 1000) companies are the
principal clients of Am Law 200 firms, Fred's posting got my attention. In fact, there is a significant divergence
between the economic geography of large law firms and large corporations.

Referencing the print version of Fortune, Fred notes that “that Texasfor the first time is home to more Fortune 500 headquarters than any
other state.” This is consistent with a
recent study by the Centre for Economic Policy Research (CEPR), "Why and
Where Do Headquarters Move?", which documented several significant
findings:

Between 1996 and 2001, there was a net outflow
of corporate headquarters from the largestU.S.
metropolitan areas (New York City, Los Angeles, San Francisco).

Net winners tended to be low corporate tax, low average
wage cities with good airports (i.e., airline hubs with many direct flights), concentrations
of other corporate headquarters in the same industrial sector, and high levels
of business services—which means, among other things, capable corporate lawyers. Sun Belt cities, such as Houston
and Phoenix,
gained the most.

Despite a net outflow of headquarters from the
largest—and most expensive—MSAs, the top 5 and top 10 metro areas, excluding
New York City, garnered a slightly larger proportion of corporate revenues during
the 1996-2001 observation period. In
other words, companies with the largest absolute growth in revenues tended
to locate or remain in major markets.

The New York CMSA, which lost both HQs and proportion of revenues,
was characterized by the authors as “a declining dominant center.”

25 April 2006

Sara has already discussed some of the papers from the MWPSA Meeting here. However, I was impressed by how the different perspectives of the two disciplines (law and political science) led to discussion of any number of interesting issues, some of which we (the law professor and the political scientists) lacked consensus on. Here's a sampling:

(1) Can every judicial vote be coded in terms of "liberal" or "conservative"? Takings cases? Economic cases? Copyright cases?... Is the conservative decision to protect private property or promote competition?

(2) What is the best way to determine if a case is "statutory" or "constitutional"? For example, is the decision about the jurisdictional scope of the U.S. Army Corps of Engineers regulation of wetlands a Clean Water Act issue or a Constitutional Commerce Clause issue? See, e.g., SWANCC; Rapanos; Carabell. It's likely both, so how should we code the case or take this into consideration in any empirical analysis?

(3) What should we do with "unpublished" versus "published" opinions? When does the distinction matter? Do judges behave differently in writing unpublished opinions? One might say these opinions are more honest reflections of judicial interpretive philosophies because there is no need to cater to other audiences who won't cite the decision... but maybe the law clerk just wrote it. Though maybe the judge treats an unpublished opinion like all others because it is still very persuasive authority, and the decision not to publish was because the judge thought the topic wasn't that interesting or important. Maybe it depends on circuit rules on the citation of unpublished opinions.

If anything these questions and the conversations at MWPSA made clear to me that there are many points were the practice of law and legal training must meet social science methodologies. It is at these points where political scientists and law professors must step up their discourse and even consider engaging in co-authored work.

Sill (LSU) and Routh (Cal State Stanislaus) gave an interesting paper at MWPSA on citations to foreign law in Supreme Court opinions. (If that link doesn't work, try this one or go to the MWPSA site and do an author search, here.) Of particular interest is their finding that Scalia is significantly more likely than many of the other justices to invoke foreign laws in the majority opinions he authors. I would guess that most of those are to old English laws (they're working on categorizing the citations), but still, the findings are interesting. (They also find that the justices reference foreign law more often in criminal rights cases and to reach liberal outcomes, but both Scalia and Thomas are more likely than the baseline to cite to foreign law (as are Ginsburg, Souter, and Stevens).) Anyway, the reason I'm bringing this to your attention is that this is an important legal debate that, until now, has not been subjected very often (to my knowledge) to empirical analysis. Anyone interested in discussing the findings? (London (Pitt) conducted a related analysis of citations to foreign law by the Canadian Supreme Court.)

24 April 2006

Just returned from the Midwest Political Science Association conference and wanted to share some of "what I learned in Chicago." Here goes.

First, we have discussed here issues of measurement, especially with respect to "the law" and "ideology." A few presentations and comments of discussants are relevant to these discussions. First, Sean Wilson's paper, entitled, "Modeling Justice Ideology Without Ecological Inference" argues that using career liberalism scores to predict votes is better than using the Segal and Cover scores in terms of model fit. I suggested that using votes to predict votes is circular and the discussant (Brandon Bartels, soon-to-be assistant professor at SUNY StonyBrook) noted that use of the Martin-Quinn scores has been similarly criticized. Martin and Quinn have a working paper on the question of when we can use their scores as independent variables that is interesting, though I remain unconvinced. Seems to me that using percent liberal (or ideal points, which are based on votes) to predict votes shows us that judges are CONSISTENT, but not WHY they make the choices they do in the first place (which I find much more interesting). Of course, this is all open to comment. (And I do think Sean makes a good point that the attitudinal model operates differently in different issue areas.) Don Songer (South Carolina) brought up the issue of unanimous decisions during the discussion as well, and that's one area where the attitudinal model doesn't give us much. We definitely need to better understand why the Court sometimes decides unanimously. Thoughts?

Also interesting were a number of papers dealing with the influence of law on decision making, both on the Supreme Court and lower court levels. Jason and I have already talked about our paper measuring the influence of legal interpretive strategies. Bartels has an interesting paper that argues that the operation of preferences at the Supreme Court is influenced by law, using jurisprudential regimes to show that ideology has more room to influence outcome when, for example, rational basis review is appropriate than when strict scrutiny controls. My coauthors (Jennifer Luse and Wendy Martinek) and I also use the notion of jurisprudential regimes to measure compliance by the Court of Appeals with the Supreme Court in our paper on Lemon, and Pam Corley (Vanderbilt) gave a very interesting paper that shows that TYPE of concurrence effects lower court compliance with the Supreme Court (and so, the Court has some control over its effect). While I haven't read the papers or seen the presentations, papers by Cameron (Princeton) and Kornhauser (NYU), Jacobi and Tiller (Northwestern), and Lax (Columbia) look like they treat both law and the relationship between levels of courts in interesting ways.

Obviously, this barely scratches the surface in terms of what was presented at the conference and I encourage you to browse the MWPSA paper archive to read more! (And would love for those of you who did attend, to use this opportunity to discuss the best work you saw presented.)

Many thanks to the folks at ELS Blog. I really appreciate the opportunity to
guest blog.

In a recent article
in the Indiana Law Journal, Tracey George wrote that
“[e]mpirical legal scholarship (ELS) is arguably the next big thing in legal
intellectual thought.” I agree. Yet, as I worked on a grant proposal last
summer for a longitudinal study of the consumption, production and content of
legal scholarship (discussed by one of my co-PI, Funmi Arewa, at Conglomerate back in
March), I was surprised to learn that this is the second time that empirical studies was the next big thing.l

During the 1920s and ‘30s, the sociological jurisprudence
and legal realism movements embraced the social sciences as the primary vehicle
for revamping legal scholarship (and, surprisingly, the law school curriculum). A key element of this agenda was empirical
research by law professors.

Yet, the most prominent legal realists were much better at praising
empiricism than actually doing the arduous task of data collection and analysis. High quality empirical work, it turned out,
was time-consuming, expensive, and sometimes produced findings that were at
odds with the ideological preferences of major funders or progressive
colleagues. There are several articles
and books that chronicle this failure, but the most definitive is probably John
Henry Schlegel’s American Legal Realism
& Empirical Social Science (1995).

Stories about how student law review editors bungled, mis-handled, and ill-treated law professors and our work (especially empirical work) abound. Some of the more outrageous are the stuff of urban legend. (To be fair, I know student editors have more than a few stories of their own that feature misbehaving faculty.) Indeed, a desire to have peers (presumably, knowledgeable peers) review and referee our work helps explain law professors' growing attraction to peer-reviewed journals. The peer-review process, however, is far from perfect. For those interested, the political science journal monitor includes an interesting thread on peer-review war stories.

Bill Henderson is an Associate Professor of Law at Indiana. Professor Henderson's primary research interests include the regulation of the financial
markets, class action litigation, and the economics of the legal profession. Professor Henderson is currently writing a
series of empirical papers on large law firms. The first paper, "Single-Tier versus
Two-Tier Partnership Tracks at Am Law 200 Law Firms," will be presented this fall at a symposium
on law firms at the University of North Carolina.

Professor Henderson also has a long-standing interest in education policy. In 2004, he published
an innovative study in the Texas Law Review, "The LSAT, Law School Exams, and Meritocracy: The
Surprising and Undertheorized Role of Test-Taking Speed," which presented evidence that the
predictive validity of the LSAT may be partially attributable to the legal academy's heavy and
undertheorized use of time-pressured exams. In 2002, he published an empirical study on the
Cleveland public schools, which demonstrated the importance of demographic patterns in
explaining, and ultimately predicting, educational outcomes at the K-12 level. The article was
the first study to utilize GIS maps for visually depicting the relationship between a school
district's socioeconomic composition and students' performance on state proficiency exams.
Professor Henderson's recent contribution to the Indiana University Rankings Symposium
(co-authored with Andrew Morriss) used multiple regression analysis to successfully model how a
variety of factors influence law school competition for high LSAT students.